de maximis una erat quae Regnum Angliae liberum ab omni legati ditione constituerat donec ipse vitae praesenti superesset So that this Patria Consuetudo of the Kingdoms being free from the Jurisdiction of any Legate and which had been confirmed by the Pope was not a Priviledge Granted to the King himself nor was he the Object of that Papal pretended Indulgence but the Kingdom whom he declares that himself could not deprive of the Benefit thereof without their own Consent And therefore the King's Assent and the King's Leave so frequently mentioned in the Monks upon this occasion must be understood of his Assent in a Great Council or Parliament Hence it was that when Johannes Cremensis came Legate hither Anno Domini 1125. And was permitted so to do by the King being then in Normandy for what private considerations betwixt the Pope and himself I know not it was look'd upon by the Wise Men of the Nation as a notorious breach of the Antient and known Laws and Liberties of the Kingdom Quam gravi multorum mentes scandalo vulneravit inusitata negotii Novitas Antiqui Regni Anglorum detrita libertas satis indicat Toti enim Regno Anglorum circumjacentibus Regionibus cunctis notissimum est eatenùs à primo Cantuariensi Metropolitano Sanctissimo Augustino usque ad istum Wilhelmum Cantuariensem Archiepiscopum omnes ipsius Augustini Successores Monachos Primates Patriarchas nominatos habitos nec ullius unquam Romani legati ditioni addictos Gervas Dorob Collect. pag. 1663. And when afterwards in King Henry the Third's Time Circa festum Apostolorum Petri Pauli Otto sancti Nicholai in carcere Tulliano Diaconus Cardinalis nesciebatur ad quid per Mandatum Regis venit Legatus in Angliam Nescientibus Regni Magnatibus plures adversus Regem Magnam conceperunt indignationem dicentes Omnia Rex pervertit Jura fidem promissa in omnibus transgreditur Nota bend Nunc se matrimonio sine suorum amicorum hominum naturalium consilio Alienigenae copulavit Nunc Legatum Regni totius immutatorem clam vocavit c. Dictum est autem quod Archiepiscopus Cantuariensis Edmundus Regem talia facientem increpavit praecipuè de Vocatione Legati sciens inde in suae dignitatis praejudicium magnam Regno imminere Jacturam Matth. Par. 440. The Historian blames those that went to meet this Legate and that made him Honourable Presents of Scarlet Cloath c. In quo facto says he nimis à multis meruerunt reprehendi tam pro dono quà m pro dandi modo quia in panno ejus colore videbatur legationis Officium Adventum acceptari Which is a remarkable testimony that the King 's calling in a Legate did not in the judgment of those times give him any Legal Authority here if it were done Nescientibus Regni Magnatibus i. e. to speak in Eadmerus his Words if he were otherwise admitted than per Conniventiam Episcoporum Abbatum Procerum totius Regni conventum The same Historian Matth. Par. speaking afterward pag. 446. of the same Legate Rex says he spreto naturalium hominum suorum consilio magis magis ut caepit deliravit Et se voluntati Romanorum praecipuè Legati quem inconsultiùs advocaverat mancipavit c. And again His aliis deliramentis Rex omnium Nobilium suorum corda cruentavit Consiliarios quoque habuit suspectos infames qui hujus rei fomentum esse dicebantur quos idcircò magis habebant Nobiles Angliae exosos But the Instance which the Doctor himself gives pag. 154. of Henry Beaufort Bishop of Winchester and Great Unkle to King Henry the Sixth is as full against him as any thing that he could have pitch'd upon For that Bishop being Cardinal of St. Eusebius was sent Legate into England Anno 1429. Which was Anno Octavo of King Henry the Sixth And was fain to be beholden to an Act of Parliament for his Pardon for having offended against the Laws made against Provisors by bringing in and Executing Papal Bulls within the Realm For Anno 10. Henr. 6. The King by the Common Assent of all the Estates pardoneth to the said Cardinal all Offences Punishments and Pains incurred by him against the Statutes of Provisors Vid. Cotton 's Abridgement of Records 10. Henr. 6. nu 16. Which would have been needless if either the King 's giving leave to his Entrance or Assent to his Decrees could have justified his Proceedings and added any Legal Authority to them By what has been said I conceive it to be very clear that all Foreign Jurisdiction being utterly against the Law of the Realm and an intolerable Usurpation upon the King's Crown and Regality and upon the Rights and Liberties of his Subjects it was never conceived that the King could by his own Personal Authority without the Consent of his People in Parliament subject them to it no more than he could subject himself and his Crown in Temporal Matters Which that he could not do we have these two Remarkable Authorities When after the Death of Alexander the Third King of Scots the Succession to that Crown was in dispute and Ten several Competitors claim'd it and that Edward the First King of England challenged a Jurisdiction of determining to which of them the Right of Succession appertained the Pope that then was pretended that it belonged to him in Right of his Apostleship to decide the Controversie and Wrote to the King a Letter requiring him to desist any further Proceeding therein In answer to which Letter of the Pope the King wrote a long Letter containing Historical Proofs of his being Supreme Lord of Scotland and that the King of Scots was his Homager and at the same time the Parliament of England then Assembled at Lincoln wrote another Letter to the Pope upon the same Subject In which are these Words VIZ. Ad observationem defensionem Libertatum Consuetudinum Legum Paternarum ex debito praestiti Sacramenti adstringimur quae manutenebimus toto posse totisque viribus cum Dei Auxilio defendemus nec etiam permittimus aut aliquatenùs permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia alià inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare praecipuè cùm praemissa cederent in exhaeredationem juris Coronae Regis Angliae Regiae Dignitatis ac subversionem Status Ejusdem REgni notoriam necnon in praejudicium Libertatum Consuetudinum ac Legum Paternarum Sealed by One hundred and four Earls and Barons and in the Name of all the Commonalty of England V. Co. 2d Inst pag. 196. and Fox his Book of Martyrs Vol. 1. pag. 387 388 389. By which it appears that the King could not legally if he would have given way to the Pope's determining the Controversie about the Succession in Scotland since it belonged to himself in
Which any one may have recourse to in Spelm. Concil Eadmer Hist Mat. Paris and others In the beginning of King Henry the Second's Reign there was another Schism in the Popedom between Alexander and Victor upon which a great Council of Clergy and Laity out of the Kingdoms of England and France met to determine whether of the two should be acknowledged Pope within those Realms The matter was debated in Conspectu Regum Praesulum coram universâ quae convenerat multitudine Cleri Populi And Alexander was received for Pope and the Schismaticks Excommunicated The History is in Nubrig Lib. 2. c. 9. Pursuant to which President when there hapned in King Richard the Second's time to be another Schism in the Papacy and Act. of Parliament was made to declare who should be received Pope in England and a Law made for punishing any of the Clergy that should acknowledge the other Pope Vide Catt Records Ann. 2. Rich. 2. p. 180. What thing can be more purely Ecclesiastical than the determining who it lawfully chosen to be the Vniversal Bishop And yet neither the King nor the King and the Clergy would settle the point without the Laity By what has been said it appears That the Ancient Supremacy of the Kings of England in Ecclesiastical Matters was a very different thing not so much from what it is now by Law as from what it is apprehended to be by many amongst us The Error is fundamental and consists in ascribing Things Acts Powers c. to the King in person which belonged to were done and exercised by him no otherwise than in his Courts Appeals are said to have been to the King at Common Law And so an Abridgment of Law has it so Fox Rolls cap. 8. vid. Chron. Gerv. p. 1387. Speed and others And the Authority quoted is the Assize of Clarendon which in one Chapter directs that Appeals shall be from the Bishop to the Archbishop from the Archbishop to the King. But another Act of Parliament made about 12 years after clears the matter Sir Roger Twisden For in the mean time Becket was Murdered and King Henry the Second being put to hard Pennance for it part of his satisfaction was that he should agree not to hinder Appeals to Rome in Causes Ecclesiastical Mat. Paris p. 126. yet so as the party going was to give Security that he would not endeavour Malum Regis nec Regni But within Four Years after the Nation Assembled in Parliament would not quit their interest But the Assize of Clarendon was again renewed and a more close expression used concerning Appeals and such persons as had prosecuted any Justitiae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infra terminum nominatum stare Juri in Curiâ Domini Regis utlagentur c. This Gervas Dorobern who well understood it tells us was but renewing the Assize of Clarendon Rex Angliae Henricus convocatis Regni Primoribus apud Northamptoniam renovavit Assizam de Clarendon Here we see that such as were aggrieved by a Sentence given by the Archbishop were pursuant to the Statutes of Clarendon not to appeal to Rome but to the King Which the Statute of Northampton made but twelve years after explains to be to the Curia Regis By this and by what has been said before upon this Subject it appears that the ultimate Appeal in Causes Ecclesiastical as well as Temporal was to the Curia Regis or Parliament and that as the same Assemblies made Laws both for the Government of Church and State so the Supreme Judicature Ecclesiastical and Temporal was one and the same After that time Appeals were sometimes prosecuted in the Court of Rome that Statute and the Assize of Clarendon notwithstanding but this was only by connivance At last when the Pope got the better of King John who lay under great Disadvantages as all our Historians tell us and that in his Magna Charta these words were inserted V. Matth. Paris Pag. 258. Liceat unicuique de caetero exire de Regno nostro redire salvò securè per terram aquam salvâ fide nostra c. Then Appeals to Rome multiplyed for every little Cause and the Master-piece of Papal Encroachments was wrought effectually But it cannot be too often inculcated that the Laws of Clarendon which gave the ultimate Appeal to the Curia Regis as aforesaid are so often stiled the Avitae Consuetudines Regni Which shews sufficiently where the Supreme Judicature resided according to our old Constitution It appears by what has been said that King William the Conqueror was acknowledged to be God's Vicar appointed to govern his Church and yet that neither He nor his Successors pretended to make any Ecclesiastical Laws to bind the whole Kingdom but in a General Council of the Kingdom That the King's Supremacy was so far from being Personal that an Archbishop did as it were appeal from himself in Person to himself in Parliament and that the King submitted and owned the Jurisdiction That the same Archbishop understood the Law to be that the Assent of the Laity was necessary to the making of Ecclesiastical Laws by which they were to be bound That the King could not of his own Authority permit a Legate to exercise his Office within the Realm That leave to exercise his Office could not be given him but in Parliament That the King could not part with Investitures if he would without the Assent of the People That Parliaments determined who ought to be received as Pope within the Realm That Appeals were to the Curia Regis by the Avitae Consuetudines Regni And that Bishops were elected in Parliament Whence I conclude that a Personal Supremacy has no warrant from Antiquity The clearing the Antient Supremacy and stating the Matter aright is of great use in this present Age in which as one sort of Men over-stock us with Jure Divino's so the Lawyers accost us often with the Common Law and the King's Perogative at Common Law and that this and the other Act is but declarative of the Common Law and gives the King no new Power And yet as the Divines have little or no ground for their Jure Divine's no more have the Lawyers in these Matters of the Supremacy any thing to warrant their late Hyperbole's but Shadows and Imaginations They found a Power exercised by the Pope which they had good reason to think injurious to the Crown they had heard that from the beginning it was not so And thus far they were right But how it was exercised before the Court of Rome and the Clergy invaded it they had forgot it having been usurpt upon Four hundred years before they were born For it is in vain to look for a true Scheme of the Antient Legal Supremacy at a nearer distance than from the Reigns of King John King Richard the First King Henry the
by whole-sale is altogether needless in a Constitution wherein Concitò reformari possunt by the same Authority that made them In Forty days time a Parliament may be summoned to consent to what alteration they shall think fit to be made And it is the constant practice observed to this day that at the beginning of every Parliament a Committee is appointed to consider what Laws are inconvenient and have need to be altered continued or repealed If the Parliament shall not think fit to make any alteration the Laws must remain in force and ought to be put in execution for there can be no Reformation of them made Sine Communitatis Procerum assensu And the reason is because by such assent Primitus emanârant The Repealing of a Law or which is all one a total Suspension of a Law is making a new Law whatever quibbles and foolish distinctions may be pretended to be made in the Case Now the Laws of England do not oriri Principis voluntate and rherefore a Repeal or total Suspension of a Law grounded upon the voluntas Principis only is not warranted by that model of the English Government that Fortescue presents us with He that asserts such a Power in the King to Suspend Laws Enacted by the Consent of the whole Kingdom turns the Government of this Nation topsie turvie Lord Chief Justice Herbert in Sir Edward Hales his Case And makes the Laws of England indeed the King's Laws contrary to the style of all Antiquity of all History and contrary to the forms of Legal Proceedings even to this day Lex terrae and Leges terrae Leges Consuetudines Angliae Leges Angliae Statuta Angliae Assiza Regni are known and common Expressions Leges Regis sounds harsh the phrase is uncouth because the Notion included in it is false nor was ever thought of by our Forefathers The Statutes of Praemunire and Provisors and the method of dispensing with them before the Reformation will abundantly disclose to us where the power of dispensing with Acts of Parliament even in Ecclesiastical Matters was vested In the 16th Year of King Richard the Second the Archbishop of Canterbury declared the Causes of the Parliament The second of which was to provide some remedy touching the Statute of Provisors for eschewing debate betwixt the Pope and the King and his Parliament Cot. Records p. 346. King Richard needed not have put himself to the trouble of convening his Parliament in order to provide a Remedy in such case if by the Law as it was then understood he might by his Perogative have dispensed with the Statutes of Provisors and all other Laws concerning Ecclesiastical Matters In the 17th R. 2. It was enacted in Parliament that Tydeman late Abbot of Beawliew and Elect of Landaffe by the Popes Provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no Example Ibid. p. 354. So that tho Tydeman had a Dispensation from the King he durst not trust to it without getting his Title to his Abby confirmed in Parliament The like President occurs in 18 H. 6. The Archbishop of Roan had the Profits of the Bishoprick of Ely granted to him by the Pope and confirmed in Parliament Ibid. p. 623. But in the Fifteenth year of King Richard the Second the Commons for the great Affiance which they reposed in the King granted that the King by the Advice of his Lords might make such Toleration touching the Statute of Provision as to him should seem good until the next Parliament so as the Statute be repealed in no Article thereof nor none disturbed of his lawful Possession So also as they may disagree thereto at the next Parliament with this Protestation That this their Assent being in truth a Novelty be had or taken for no Example Ibid. p. 342. And in the Sixteenth year of the same King the Commons grant to the King that he by the Advice of his Lords should have power to moderate the Statute of Provisions to the Honour of God and saving the Rights of the Crown and to put the same in execution so as the same be declared in the next Parliament to the end the Commons may then agree to the same or no. Ibid. pag. 347. The occasions of these Concessions were the then circumstances of the Kings Affairs who was often at enmity with France and made advantage of the Pope's Friendship which he obtained by this and other Methods of the like kind The like Instances occur in the same Collection p. 362 In the Twentieth year of the same King. p. 393 In the First year of King Henry the Fourth p. 406 In the Second year of King Henry the Fourth From hence it appears that those Times had no notion of any absolute Power any inseparable Perogative in the King himself of dispensing with those Laws without his Parliaments consent For they grant the King such Power and that but for a time and so as they may disagree to it at their next Meeting and with a protestation that this their Assent be not drawn into Example and declare their giving the King such Power to be a Novelty And all this they do with a saving to the Rights of the Crown which let them if they can explain the meaning of who imagine that the uniting of Ecclesiastical Jurisdiction to the Crown of England by the Statute of 1 Eliz. is a vesting of it in the King's Person In this same interval of Time the Statutes of Praemunire were enacted viz. 27 Edw. 3. cap. 1. and 38 Edw. 3. cap. 1. 16 R. 2. and some others with which how far it was lawful for the King to dispense take an account from what hapned to Cardinal Wolsey in King Henry the Eighths time He had a Commission from the Pope to exercise his Office of Legate here in England he had the King's leave so to do he exercised that Office many years without controul and was submitted to almost universally I remember but one Obstruction offered to have been made to him and that was by Hunne a Merchant-Taylor in London The History of which may be read at large in Fox and Dr. Burnet's History of the Reformation And yet the whole Clergy were afterwards attainted of a Praemunire for submitting to such Foreign Authority as the same Authors the Lord Herbert and others abundantly testifie But Stephen Gardiner's Letter to the Duke of Somerset concerning that Matter as it is very remarkable for many other Passages so this ensuing part I think proper to be here inserted because it will save me the trouble of relating the History and of endeavouring to open the Reasons of that Proceeding Now whether the King may command against an Act of Parliament and what Danger they may fall in that break a Law with the King's consent I dare say no Man alive at this day hath had more Experience with the Judges and Lawyers than I First I had experience in my
modest Judges to take upon themselves the Resolution of Tho nothing can be too high nor too difficult for such Judges to determin who are wise enough to declare Acts of Parliament void Co. 8. Rep. Fol. 118. a. Moor's Reports pag. 828. But what shall we say of them in 40 Edward 3. who because the Statute of 14 Edw. 3. cap. 6. had impowered them to amend the misprision of a Clerk in writing a Letter or a Syllable too much or too little not only made a Question Whether they might amend where there was a Word wanting but went to the Parliament to know the Opinion of them that made the Law See the Story in Coke's 8 Report 158. a. So sacred were Acts of Parliament accounted in those days and so little was the Authority of the Judges in Westminster-Hall or rather of so great Credit and Authority were the Resolutions of Judges in those days when they were wary and cautious of making Alterations and in difficult Matters consulted their Superiors Other Examples of Adjournments ad proximum Parliamentum may be seen in Cotton's Abridgment of the Records in the Tower. But that which surprizeth us is That all our Judges since the Reformation should have attained to such an omniscience in the Law that I think I may confidently affirm there has not been an Adjournment ad proximum Parliamentum propter difficultatem these Hundred and fifty Years last past Sure I am that no President of any such thing appears in our modern Books of Law. And yet Cases of as great moment concern and consequence to the Government and the whole Nation have come in question within that space of time as ever did or could in former Ages But there is a Notion broached amongst us that the Kings of England have greater Power and larger Prerogatives in Ecclesiastical Matters than in Temporal and that by vertue of their Ecclesiastical Supremacy they may dispense with such Acts of Parliament as concern Religion But they that say so do not consider that before the Reformation the Kings of England had much less power in Ecclesiastical Matters than in Temporal and therefore they cannot have greater now unless some Act of Parliament give it them And therefore this power of dispensing with Acts of Parliament in Matters of Religion must be given by some Acts of Parliament since the Reformation or else the King has it not And admit for the present their Hypothesis who would invest the King with whatever power the Pope de facto exercised here Yet that will not serve the turn for as much as the Pope himself whatever power he might claim and attempt to exercise yet was never allowed a power to dispense with Acts of Parliament concerning Ecclesiastical Matters even when it was full Sea with him here in England Take one remarkable President out of Matt. Paris p. 699. that in the Year of our Lord 1245. The King the Prelates Earls Barons and Great Men of the Realm then Assembled in a most general Parliament at Westminster drew up several Articles of Grievances against the Popes Exorbitances and Illegal Oppressions one of which was conceived in these words viz. Item Gravatur Regnum Angliae ex adjectione multiplici illius infamis nuncii Non Obstante per quem juramenti Religio consuetudines antiquae Scripturarum vigor concessionum authoritas Statuta Jura Privilegia debilitantur evanescunt And it cannot but seem strange that after such publick Complaints for many others of the like nature might be cited of the whole Kingdom against Non Obstante's as intolerable Grievances they should be afterwards countenanced and screwed up to such a transcendent Soveraignty as to frustrate Laws Statutes and Acts of Parliament and that by vertue of an Ecclesiastical Supremacy by which the King is pretended to have whatever power the Pope had when the Pope himself was never allowed this To these Presidents and Authorities of former times it may not be improper to add what happened in the latter end of the Reign of King James the First and the beginning of King Charles the First upon occasion of the Spanish Match with relation to the Penal Laws against Roman Catholicks The whole Negotiation of that Affair may be read at large in Rushworth's first Volume of Historical Collections and in Prynne's Introduction to the Archbishop of Canterbury 's Tryal I will only point at two or three passages that are most material to the present purpose 1. King James in a Letter written with his own hand to the King of Spain has these words viz. Leges nostrates quae mulctam Catholicis non mortem irrogant aboleri aut rescindi à nobis Seorsim non posse leniri it a posse cùm erit usus exploratum habeat Serenitas vestra omnibus ut dictorum Catholicorum Romanorum animis mansuetudine ac lenitate nostrâ conciliatis c. he had promised that no Romish Priest or Catholick should be proceeded against for any Capital Crime but for the other Laws ut supra Yet afterwards when King James was made to believe that the Match was just upon the point of being concluded a Proclamation was prepared for granting a toleration to Papists tho' it never came out But Archbishop Abbot wrote a Letter in the nature of a Remonstrance to King James in which besides other Considerations of Religion and Policy these words follow Prynne's Introduct p. 40. Besides this Toleration which you endeavour to set by your Proclamation cannot be done without a Parliament unless your Majesty will let your Subjects see that you will take unto your self a Liberty to throw down the Laws of the Land at your pleasure And in the Second Year of King Charles the First the King commanded his Attorney General to charge the Earl of Bristol at the Bar of the House of Lords with High Treason and other Offences and Misdemeanours that they might proceed in a legal Course against him according to the Justice and usual Proceedings of Parliaments the fifth of which Articles is in these words That from the beginning of his Negotiation and throughout the whole managing thereof by the said Earl of Bristol and during his said Ambassage he the said Earl contrary to his Faith and Duty to God the true Religion professed by the Church of England and the Peace of the Church and State did intend and resolve that if the said Marriage so treated of as aforesaid should by his Ministry be effected that thereby the Romish Religion and the Professors thereof should be advanced within this Realm and other his Majesties Realms and Dominions and the true Religion and the Professors thereof discouraged and discountenanced And to that end and purpose the said Earl during the time aforesaid by Letters unto his late Majesty and otherwise often counselled and persuaded his said late Majesty to set at Liberty the Jesuits and Priests of the Romish Religion which according to the good Religious and Publick Laws of this Kingdom were
of the Patronage and Foundation of the King the Ordinaries by vertue of the King's Commissions to them directed shall enquire of the manner and foundation of the said Hospitals and of the Governance and Estate of the same and of all other matters requisite and necessary in that behalf and the Inquisitions thereof shall certifie into the King's Chancery And as to other Hospitals which be of another Foundation and Patronage than of the King the Ordinaries shall enquire of the manner of the Foundation Estate and Governance of the same and of all other Matters and Things necessary in this behalf and upon that make due correction and reformation according to the Laws of Holy Church as to them belongeth This Act apparently makes a distinction betwixt Hospitals that are and that are not of the King's Foundation and Patronage with respect to the Right of Visitation Those of the King's Foundation the Ordinaries were to visit by the King's Commission But those that were not of the King's Foundation the Ordinaries were to visit too but how Not by any Commission from the King but as special Commissioners special Visitors appointed by that Act. The King did not pretend to issue a Commission to Visit an Hospital of a Subject's Foundation The Parliament were strangers to such a conceit The right of Visiting de communi Jure belongs to the Founder he that gave the Laws ought to see them executed If the Parliament had appointed that Hospitals of the Foundation of Subjects should be Visited by the Ordinaries by Commission from the King they had in effect translated the Rights of all Founders that were Subjects to the King which they never intended For the Legal Notion of Visitation in such Cases is no more than this viz. A Man Founds and Endows a College The Rule of Law and of Natural Reason teaches cujus est dare ejus est disponere As a Man may give Lands to a private person upon what condition the Donor pleases provided it be not against Law so a Man may give Lands to a Society of Men upon what terms he pleases The terms exprest in the Foundation are called the private Laws by which the Society is to be ordered and governed And just as when a Man makes a Lease for Life or Years the Lessor may enter of right to see whether waste be done or no so a Founder may come and enquire whether those of his Foundation observe the Rules and Orders prescribed by him or his Ancestors and proceed according to the Statutes and the Powers thereby reserved in case he find any neglect or misdemeanour What right the King has to interpose his Authority in such case any more than in the Government of a private Family I cannot discern But Colleges in Vniversities are pretended to be visitable by the King's Commission by vertue of his Ecclesiastical Authority Here we must distinguish A College of Divines for Example founded by a Subject and Endowed and receiving Laws for their Governance from their Founder are visitable by their Founder and his Heirs or Successors They may be also for any thing here alledged to the contrary visitable by the Bishop of the Diocess or if exempt from Episcopal Jurisdiction by the King's Commission But what Power have these Visitors The Founder enquires whether the Statutes of the Foundation are observed and punishes according to the Statutes but goes no farther The Ordinary or Archbishop or if the place be exempt the King's Visitors enquire Whether they profess the Doctrin and observe the Rites and Ceremonies of the Church of England If the King had any thing to do to intermeddle with the Statutes and Government of such a College in the first Instance by virtue of his Ecclesiastical Supremacy it seems very strange that in the third and fourth Year of Queen Elizabeth's Reign when the Bishop of Winchester Founder of Maudlyn College in Oxford had at a Visitation deprived the President and he appealed to the Queen in Chancery the Judges and Civilians having had a Conference upon the Business agreed that the Appeal lay not as the Law then stood for that this Case was out of the Statutes of 24 and 25 Hen. 8. which direct Appeals to the King in Chancery and this Deprivation was a meer Temporal Thing and inflicted as by a Lay Patron And that if he were wrongfully expelled he might have an Assize or other Suit at Common Law. Concerning the King's Power with respect to the private Statutes of a College of a Subjects Foundation I will acquaint the Reader with one Act of Parliament made 1 Mariae which will yield some very useful Inferences The Act recites Whereas the late Noble Prince of Famous Memory King Henry the Eighth Father unto our most Gracious Sovereign Lady the Queen amongst other his godly Acts and Doings did erect make and establish divers and sundry Churches as well Cathedral as Collegiat and endowed every of the same with divers Mannors Lands Tenements and Possessions for the maintenance of the Deans Prebendaries and Ministers within the same and for other charitable Acts to be done and executed by the same Deans Prebendaries and Ministers and also did incorporate the same Deans Prebendaries and Ministers and made them Bodies politick in perpetual Succession according to the Laws of this Realm of England And where also as the said late King for the better maintenance and preservation of the said Churches in a godly Unity and good Order and Governance granted unto the several Corporations and Bodies Corporate of every of the said Churches that they should be ruled and governed for ever according unto certain Ordinances Rules and Statutes to be specified in certain Indentures then after to be made by his Highness and to be delivered and declared to every of the Bodies Corporate of the said several Churches as by the said several Erections and Foundations of the said Churches more plainly it doth and may appear Since which said Erections and Foundations the said late King did cause to be delivered to every of the said Churches so as is aforesaid erected and incorporated by certain Commissioners by his Highness appointed divers and sundry Statutes and Ordinances made and decreed by the same Commissioners for the Order Rule and Governances of the said several Churches and of the Deans Prebendaries and Ministers of the same which said Statutes and Ordinances were made by the said Commissioners and delivered unto every of the Corporations of the said several Churches in writing but not indented according to the Form of the said Foundations and Erections by reason whereof the said Churches and the several Deans Prebendaries and Ministers of the same have no Statutes or Ordinances of any Force or Authority whereby they should be ruled and governed and therefore remain as yet not fully established in such sort as the godly intent of the said late King Henry the Eighth was to the great imperfection of the Churches and the hindrance of God's Service and
for Sees of Bishops Suffragans And gives the King Power and Authority to give to one of two Persons to be presented to him by any Archbishop or Bishop the Stile Title and Name of a Bishop of such a See c. provides for the Consecration of such Bishops limits what Authority they shall have in the Diocess c. Hence I infer that the Parliament had its share in the Government of the Church The Letters Patents made pursuant to this Act conclude Vigore Statuti in ejusmodi casu editi provisi Dr. Burnet Coll. of Rec. ad Vol. 1. p. 130. notwithstanding the Restitution of the Supremacy and the King could not as SUPREME HEAD without this Act of Parliament appoint the number of Suffragan Bishops or give limit or bound their Power and Authority In the Twenty eighth Year of this King it was enacted That all Archbishops and Bishops of this Realm or of any the Kings Dominions consecrated and at this present Parliament taken and reputed for Archbishops and Bishops may by the Authority of this present Parliament and not by Vertue of any Provision or other Foreign Authority Licence Faculty or Dispensation keep enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner as if they had been promoted elected confirmed and consecrated according to the due Course of the Laws of this Realm And that every Archbishop and Bishop of this Realm and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Archbishop or Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging Here the Parliament impowers the Archbishops and Bishops that then were to use and exercise their Offices and Orders not by Virtue of any Foreign Authority but by Authority of this present Parliament This the King could not have done without consent of Parliament because he could not dispense with the Statutes of Praemunire and Provisors as has been said already and as appears by a notable Act in the Twenty fifth Year of this King's Reign Burnett's Collect. of Records ad Vol. 1. pag. 121 122 123. concerning the Deprivation of the Bishops of Salisbury and Worcester The Act recites That where by the laudable Laws and Provisions of this Realm it had been established that no Person or Persons of of what Degree Estate or Quality should take or receive within this Realm of England to Farm by any Procuracy Writ Letter of Attorney Administration by Indenture or by any other Mean any Benefice or other Promotion within this Realm of any Person or Persons but only of the King 's true and lawful Subjects being born under the King's Dominions And also that no Person or Persons of what Estate and Degree soever by reason of any such Farm Procuracy Letter of Attorney Administration Indenture or by any other Mean should c. Notwithstanding which said wholsom Laws Statutes and Provisions the King's Highness being a Prince of great Benignity and Liberality having no Knowledge or due Information or Instruction of the same Laws Statutes and Provisions hath heretofore nominated and preferred and promoted Laurence Compegius Bishop of Sarum with all the Spiritual and Temporal Possessions c. belonging to the same And hath also nominated preferred and promoted Hierome being another Stranger to the See of Worcester c. Be it enacted by Authority of this present Parliament That the said two several Sees of Salisbury and Worcester shall be taken reputed and accounted in Law void c. Here we see the King was not allowed to act contrary to Acts of Parliament concerning Ecclesiastical Matters We see Bishops depriv'd by Act of Parliament and by the Act of 28 H. 8. cap. 16. other Bishops and Archbishops who in strictness of Law were no Bishops of those Sees by reason of their foreign Provisions quieted in the injoyment of their Bishopricks and authoriz'd to exercise their Episcopal Function there by Act of Parliament though it is not to be doubted but if the Rolls of those times were searcht Dispensations formerly granted to those Bishops would be found amongst them But they stood them in no stead because contrary to the Laws Statutes and Provisions aforesaid So that here the King and Parliament acknowledging that the King had no knowledge or due Information or Instruction of the said Statutes which is a modest and respectful way of expressing the King's doing an illegal thing what else can we infer than that they disown and he disclaims any personal Prerogative inherent in himself to violate those and consequently other Laws concerning Ecclesiastical Affairs Which shews both that the King's Supremacy was not accounted any such unbounded Power as some fancy and that the Parliament retain'd its share in the Jurisdiction over Ecclesiastical Persons and Things notwithstanding the restitution recognition or call it what you will of the Supremacy I pass by the Act of 31 H. 8. c. 14. whereby certain Opinions then accounted Heresie and Marriage of Priests are brought within the compass of Treason and Felony for that the inflicting of such Punishments for what Crimes or pretended Crimes soever is an Act of Civil not of Spiritual or Ecclesiastical Jurisdiction and come to the Act of 32 H. 8. cap. 26. which laid the top stone of King Henry the Eighths Supremacy and mounted it one story higher than ever it was carried before or since It was thereby enacted that All Decrees and Ordinances which according to God's Word and Christ's Gospel by the Kings Advice and Confirmation by his Letters Patents shall be made and ordained by the Archhishops Bishops and Doctors appointed or to be appointed by his Royal Majesty or else by the whole Clergy of England nota benè in and upon the matter of Christian Religion and Christian Faith and the lawful Rites Ceremonies and Observations of the same shall be in every point thereof believed obeyed and performed to all intents and purposes upon the pains therein comprised Here Matters of Doctrin and Worship are given up to the King's determination and appointment But he was to determine by such Advice as was appointed by the Act. And this Power was personal died with him and was never pretended to by any of his Successors It was given him by Parliament who could not have given it him if they had not had it themselves for there was no Act of Convocation in the case He had it not before for then there would have been no need of the Act. It is greater to give than to receive They give it him with a restriction that affords a good Argument against a pretended power in the King of dispensing with all Acts of Parliament concerning matters of Religion viz. Provided that nothing shall be ordained or defined which shall be repugnant to the Laws and Statutes of the Realm It seems the Parliament at that time was so far from apprehending any power lodged in the King either by vertue
Visitations page 144. c. to page 160. In which Section because he pretends to set up an imaginary Personal Supremacy quite different from what I have endeavoured to assert from some Remarks upon Ancient Histories and late Acts of Parliament but agreeable enough with some Opinions that have been espous'd of late and made use of to warrant some late Proceedings I thought it might not be amiss to trace him through that Section and submit to the Judgment of the Unprejudiced Reader whether the Doctor has afforded the World a right Scheme of the King 's Ecclesiastical Supremacy I beg the Reader 's Pardon if he meet with some few passages over again here that were touch'd upon in the foregoing Discourse I hope their usefulness will excuse the repetition of them and the Answer would not have been so clear without it He tells us pag. 144. that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Bulls and Breves of the Apostolick See to be executed here without their Allowance Which I agree to be very true only the Doctor saying without their Allowance implies and it appears by the whole drift of his Discourse in this Chapter and indeed by the main Scope of his Book that he would be understood that With their Allowance such Canons and Constitutions Bulls and Breves might lawfully be Executed Which I deny And hope to make it evident that Our Kings could not by their own Personal Authority let in upon their Subjects a foreign Jurisdiction He adds pag. 145. that since the Supremacy has been Established by Act of Parliament in the Crown The Kings of England may according to the Laws in force not only Exercise all the Powers they could What Powers those are no Man knows but Filmer Brady Johnson Hicks Sir. Roger L'Estrange and a very few others of yesterday as Sovereign Princes but likewise whatever the Pope de jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently that whatsoever was done in Visitations by the Authority of the Popes Metropolitans or Diocesan Bishops may now be done by the Kings of England as Supreme Ordinaries Which is a very wild Assertion and without the least Foundation of Truth He does not here speak it out roundly That the King may by the Law do whatever the Pope de facto did but minces the matter a little by saying Whatever the Pope de jure if not de facto could or did do And yet with the same breath he says positively that whatever was done in Visitations by Authority of the Pope may now be done by the King. So that however the King may be limited and tyed up in other Parts of his Ecclesiastical Jurisdiction to what the Popes de jure could do in Visitations at least he has Authority to do whatever the Popes Archbishops or Bishops actually did The Doctor did not consider that the several Branches of the Supremacy now restored by Act of Parliament are guided directed and limited by positive and particular Laws made about the time of the Reformation And that the Act of primo Elizabeth in that general Clause which Restores the Supremacy Vnites and Annexes only such Jurisdiction and Authority as had or might be lawfully Exercised by any Spiritual Person c. Not that the Pope to speak strictly could Exercise any Jurisdiction lawfully within this Realm for the Old Laws and Customs of the Realm and the Statutes of Premunire and Provisors were firm Bars to his Right but a Jurisdiction may be lawful in it self that is for so I would be understood the Acts of a Person Assuming Jurisdiction may be lawful in themselves considered separate and a-part from the Person of him that Exerts it though the Person Exercising such Jurisdiction have no legal Authority If an Usurper should possess himself of any Government and carry on the Administration of it in the same Method and Course of Justice that the Lawful Prince did or ought to do in strictness of Law there might perhaps be a Nullity in all his Acts and yet considered Abstracted from his Person his Government would be said to be lawful that is according to Law and the course of Proceedings that had been setled and obtained before his Usurpation So whatever the Pope did in this Nation as pretending to be Head of the English Church which was not in it self contrary to the Law of the Realm in Church or State but might lawfully be done though not by him is by the said Act of primo Elizabeth Vnited and Annexed to what Why to the Imperial Crown of this Realm Whereas by the Act of Supremacy that passed in King Henry the Eighths time All such Jurisdiction Authority c. was personally vested in the King his Heirs and Successors But of that distinction more shall be said God willing some other time Pursuant to this imagination of the Pope's Power being Translated to the King he tells us that latter Laws have devolved upon the King even the Power of the Pope in foro externo pag. 145. He says pag. 145 146. that during the Schism in the Papacy between Vrban and Clement King William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere And that none should be received as Pope in England without his Licence and Election Here if I understand the Doctor aright he takes for granted that if there should happen a Schism in the Popedom the King might declare whether or which of the Competitors himself thought fit to be Pope within this Realm Which I deny that he could do without the Assent of the Clergy and Laity in a General Assembly He says pag. 145. that if the Archbishop of Canterbury called and presided in a General Council of Bishops King William allowed nothing to be appointed or forbidden unless they were accommodated to his Will and were first ordained by him These are the Words of Eadmerus out of whom the Doctor Quotes them Eadm Lib. 1. Fol. 6. But if the Doctor would here insinuate as he does and consonantly to his own Hypothesis must mean that the King's Will concurring with the Assent of a General Council of Bishops could make an Ecclesiastical Law to bind the whole Kingdom without the Assent of the Laity that is what I deny and hope to make it very clear in the following Discourse Whereas he says pag. 145. out of the same Author Eadmerus that King William suffered not any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precept I hope it will appear that this was not an Arbitrary Power assumed by the King but that the Law of the Realm was so He says pag. 146 147. that the Oath of Fidelity which Anselme had taken to King William Rufus was no ways like the present Oath of Supremacy He says pag. 148 149. As to the legantine Power it is apparent by
several Instances that none Exercised any here without the King's leave Which is true and as true it is and apparent by as many Instances that the King singly could not give any such leave He says pag. 154. that What Visitations were made of the Vniversity of Oxford by the Pope's Legates do no ways infer that thereby the King's Power of Visiting is Exauctorated but that whatever they did was in Subordination to the King's pleasure or as ordain'd by his Laws The Doctor does well to disjoin the King's Pleasure and his Laws for they did not always agree But this Paragraph must be altered to make it tolerable Sence viz. Whatever the legates did in Visiting the Vniversity of Oxford if it were not contrary to the King's Laws was in Subordination to the King's Authority Some other passages tending to the same purpose with those already taken notice of will offer themselves as we go along through the several parts of the Chapter Whereas the Doctor says that several Kings permitted no Canons or Constitutions of the Church or Bulls c. to be Executed here without their Allowance Intimating thereby that those Kings might of their own Personal Authority give such Allowance And that with their Allowance Foreign Canons and Constitutions might be Executed here I take leave to say That it never was in the Power of a King of England legally to Subject his People to a Foreign Jurisdiction nor to Oblige them to the Observance of any Law without their own Assent And therefore the King's Allowance could not make a Foreign Canon Obligatory here unless it were received by the People with their own Assent Nor could his giving leave legally Subject his People to Processes from Rome as will abundantly appear by and by But before I go on I desire the Doctor to take notice of an Old Act of Parliament for such it was though the Word Parliament was not then in being amongst us made in King Edward the Confessor's Time if not before and Confirmed by King William the First Debet Rex omnia ritè facere in Regno per Judicium Procerum Regni Debet enim Jus Justitia magis regnare in Regno quà m voluntas prava Lex est semper quod jus facit Voluntas autem Violentia Vis non est Jus. And again in the same Chapter Debet Rex Judicium Rectum in Regno facere Justitiam per Consilium Procerum Regni sui tenere Ista verò debet omnia Rex in propriâ personâ inspectis tactis Sacrosanctis Evangeliis super sacras sanctas reliquias coram Regno Sacerdotio Clero jurare antequà m ab Archiepiscopis Episcopis Regni coronetur Lambard de Priscis Anglorum legibus page 138. page 142. Hence we see that Judicium Procerum Consilium Procerum are Essential to the English Government Without which Right and Justice cannot Reign but a Perverse Will would Rule the Roast Hence it was that King Edward the First Prynn's Collect Tom. 3. Pag. 158. When Pope Gregory the Tenth sent Reymundus de Nogeriis his Chaplain as his Nuntio into England c. amongst other things to Demand and Receive from the King Eight Years Arrears of the Annual Tribute and Peter-pence then due to the Church of Rome Wrote to him a very remarkable Letter In which among other things he tells him That his last Parliament was Dissolved the sooner by reason of his own Sickness so that he could not then Super Petitione census ejusdem deliberationem habere cum Praelatis Proceribus Regni sui sine Quorum Communicato Consilio Sanctitati Vestrae super praedictis non possumus respondere jure-jurando in Coronatione nostra praestito sumus Astricti quod jura Regni nostri servabimus illibata nec aliquid quod diadema tangit Regni ejusdem absque ipsorum requisito Concilio faciemus And therefore he deferred returning the Pope an Answer till the next Session of Parliament Pro firmo scituri Pie Pater Domine quòd in alio Parliamento nostro quod ad festum Sancti Michaelis intendimus celebrare habito Communicato Consilio cum Praelatis Proceribus memoratis Vobis super praemissis ipsorum consilio dabimus Responsionem By this Letter it appears that whatever did Diadema Regni tangere could not nor ought to be done sine Concilio Prelatorum Procerum Regni By which as is evident enough by the Letter it self a Parliament is meant Now that the Bringing in of Bulls and Executing Process from Rome within the Realm did Diadema Regni tangere with a Witness will appear by perusing the Statutes of Praemunire and Provisors Anno 27 Edward the Third cap. 1. Because it is shewn unto Our Lord the the King by the Grievous and Clamorous Complaints of the great Men and Commons how that diverse of the People be and have been drawn out of the Realm to Answer of diverse things the Cognisance whereof appertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court In Prejudice and Disherison of Our Lord the King and of his Crown and of all the People of his Realm and to the Vndoing and Destruction of the Common Law of the said Realm at all times used Another Statute mentioning Citations out of the Court of Rome and Provisions of Benefices and Offices in the Church says that by means thereof the Good Antient Laws Franchises and Vsages of the Realm have been greatly Impeached Blemished and Confounded the Crown of Our Lord the King abated and the great Men Commons and Subjects of the Realm in Bodies and Goods damnified 38 Statute Edwardi tertii cap. 1 2 3 4. The Statute of 16 Rich. 2. cap. 5. Entituled Praemunire for purchasing Bulls from Rome The Crown of England subject to none mentions frequently All these things as being to the Disherison of the King's Crown and against his Crown and Regality And therefore in the five and twentieth Year of King Edward the Third the Commons prayed the King that since the Right of the Crown of England and the Law of the Realm was such that upon the Mischiefs and Damages which happen'd to his Realm he ought and was bound by his Oath with the Accord of his People in his Parliament thereof to make remedy and Law That it may please him thereupon to Ordain remedy Which he does accordingly by the Assent of the Great Men and Commonalty of the said Realm having regard to a Statute made in the time of his Grandfather Anno 25th Edward the First against Provisions which holdeth his force and was never Defeated Repealed or Annulled in any Point and by so much he is bounden by his Oath to cause the same to be kept as the Law of the Land. The Laws of Praemunire and against Provisions were but Declaratory Laws of the Vsages of the Realm in opposition to Papal Bulls c. And here we see our
That the King desired only dignitates Regibus ante debitas sibi exhiberi Hoved. pag. 292. b. And in another Letter to the Pope on the King's behalf they declare the same ibid. pag. 292 293. Our Archbishops indeed used to fetch their Palls from Rome but that Entitled the Pope to no Jurisdiction here So that the Subject Matters of the Laws of Clarendon then Enacted into Statute-Laws were in King William Rufus his Time the Laws and Vsages of the Realm and therefore Anselm's and Becket's Oaths were in Substance the same And those Laws and Vsages having been usurp'd upon since and the Usurpation purged by the Laws made about the time of the Reformation the Oath of Supremacy is now the same in Substance with those Ancient Oaths aforementioned Not but that the Ecclesiastical Jurisdiction in some of its Branches may now be settled in another course of Administration than it was so long ago But those Alterations which yet are not very considerable have been made by Acts of Parliament by which if Men had been content to stand or fall many Notions that are now too rise amongst us would never have been hatched The Writ from R. de Glanville to the Abbot of Battle mentioned by the Doctor pag. 148. whereby he Commands him on the King's behalf by the Faith which he owed him not to proceed in the Cause that was depending betwixt the Monks of Canterbury and the Archbishop donec indè mecum fueris locutus was no other than a Probibition to him to proceed in a Cause depending before him and the Abbots of Feversham and St. Augustine as Judges appointed by the Pope to hear and determine it They had cited the Archbishop to appear before them they had sent him Comminatoriam Epistolam eique diem peremptorium praefixerant They had no Legal Authority to Exercise Jurisdiction within the Realm for the Pope could give them none And therefore the Chief Justice prohibits them in the King's Name The Writ may be Read in Chron. Gervas Coll. pag. 1503. from whence the Doctor Quotes the Story Though he relates it Knavishly enough We find a Writ saith he to the Abbot of Battle c. wherein he Commands him on the part of the King by the Faith which he owes him and by the Oath which he made to him to do what he then enjoyned Never telling us that the thing enjoyn'd was the keeping of his Oath and observing the Law and that the Method observed by the King in sending him this Injunction was according to the Ordinary course of Justice and of proceedings at Law in the like Cases But the Doctor would raise a little Dust by this and a few other such pitiful Scraps to amuse his Readers and create an Opinion that the King may enjoyn any thing As to the Legantine Power he says pag. 148. It is apparent by several Instances that none Exercised any here without the King's leave whether by the Grant of Pope Nicholas to Edward the Confessor he disputes not But the Doctor takes for granted that with the King's leave a a Legate might be sent and Exercise his Office here Though what he Quotes for it out of Eadmerus pag. 125 126. concerning what passed betwixt King Henry the First and Pope Calixtus at Gisors makes nothing for his purpose Rex à Papa impetravit ut omnes Consuetudines quas Pater suus in Angliâ habuerat in Normanniâ sibi concederet maximè ut neminem aliquando legati Officio in Angliâ fungi permitteret si non ipse aliquâ praecipuâ querelâ exigente quae ab Archiepiscopo Cantuariorum caeterisque Episcopis Regni terminari non posset hoc fieri à Papâ postularet The coming in of a Legate at the King's Request to determine some great and difficult Controversie in particular which could not be decided by all the Bishops of England is one thing and the coming in of a Legate with a General Power to Exercise Jurisdiction over all the King's Subjects and to hold a Legantine Court is a quite other thing The Doctor says pag. 151. that Anno Domini 1138 Tertio Regis Stephan Albert or Alberic Cardinal of Hostia was the Pope's Legate and Consecrated Theobald Archbishop of Canterbury and called the Clergy to a Colloquium by Apostolical Authority by which it appears says he That the Canons of the Church now obtained and the King Assented to the Powers the Legate had so that what was Decreed had the King's Allowance It seems provided what was Decreed had the King's Allowance all was well and there needed no more But Gerv. Dorobern Coll. pag. 1344. tells us that Praedictus Albericus Apostolicâ Legatione functus venit in Angliam Domini Papae litteras ad Regem deferens lectis itaque litteris coram Rege Primoribus Angliae licèt non in primis vix tandèm pro Reverentiâ Domini Papae susceptus est So that this Legate was admitted by the Consent of the Primores Angliae as well as of the King. And consequently his Exercising his Office here with such Assent as aforesaid is no Argument that the King 's Personal Assent to his Powers without the Concurrence of his Primores would have made them ever a whit the better And when this Legate Celebrated his Synod at Westminster there were present Episcopi diversarum Provinciarum Numero XVII Abbates ferè XXX Cleri Populi Multitudo Numerosa See Spelman's Councils Volume the Second pag. 39. and Gerv. Dorobern Collect. pag. 1347. So that as the Assent of the Primores was had to his Entry so the Multitudo Numerosa Cleri Populi Assented to the Canons then made And the King 's single Assent to either would not have been sufficient Besides this I shall take leave to oppose the Judgement and Opinion of King Henry the First to that of the Doctor concerning the King's having or not having Authority to Admit a Legate hither from Rome When in his Reign Petrus Monachus Cluniacensis came hither from Pope Calixtus with a Legantine Power perductus ad Regem dignè ab eo susceptus est Et expositâ sui adventûs causâ Rex obtensâ expeditione in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem Authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Lib. 6. pag. 137 138. He tells it him as a known Truth constaret that his Legacy could not be of any validity in this Nation without the Consent of the whole Kingdom in Parliament Which by reason of his Wars with the Welsh he was not then at leisure to call The Words following are Remarkable VIZ. Super haec patrias Consuetudines ab Apostolicâ sede sibi concessas nunquam se aequanimiter amissurum fore testabatur in quibus haec
have done notwithstanding his Newly restor'd Supremacy Sir Roger's 16th Particular is that Our Kings placed by a Lay hand Clerks in Prebendary or Parochial Churches Ordinariis penitus irrequisitis But if he had considered that Originally all Church livings in England were Donatives And that Presentations to Ordinaries Admissions Institutions and Inductions thereupon obtain'd in England in compliance with the Canons many years after the Conquest he would not have mentioned that as a special prerogative in the King which was but common to him with All his subjects that had been Founders and were Patrons of Benefices Mr Selden tells us in his History of Tythes cap. 12. sect 5. that it was not till about the year MCC that the Decretals and the Encreasing Authority of the Canons had settled the Vniversal course here of filling Churches by Presentation to the Bishop Archdeacon Vicar of the Bishop or Guardian of the Spiritualties and that then the use of Investitures of Churches and tythes severally or together practised by Lay-men was left off And a Division of secular and Ecclesiastical Right from thence been continued in practice And in the same Section pag. 392. he says that whilst the use of Lay-Investitures was in being all Churches so given were properly Donatives For further satisfaction as to that Particular I refer to him Sir Roger's seventeenth Particular is that Our Kings prohibited the Laity from yielding Obedience or answering by Oath to their Ecclesiastical Superior enquiring de peccatis subditorum This take out of the Additaments to Matth. Paris pag. 200. num 9. from whence Sir Roger quotes it Item cum Praelati Ecclesiastici inquirere volunt de peccatis subditorum prohibentur laici ne de veritate dicendâ aut de credulitate aliquod juramentum exponant aut Praelatis super hujusmodi obediant propter quod multorum excessus peccata mortalia incorrecta impunita relinquuntur sic praestatur audacia delinquendi peccandi facultas Now this was no other then protecting the Laity from being impos'd upon by the Oath ex officio And innumerable Authorities might be cited to prove that no kinds nor forms of Oaths can be made or imposed on the King's Subjects nor prescribed to them in any new cases but by Act of Parliament onely And that no Bishop or Subject whatsoever hath any power to make or enjoyn any new Oaths or forms of Oaths nor any Authority to administer an Oath to any Man without some Legal Commission from the King under the Great Seal or some Act of Parliament especially Authorizing him to give or take an Oath unless in Courts of Record or other Courts who have Authority to administer Oaths by Prescription But Anno Dom. 1237. Otho the Pope's Legate in a Council at London made this Constitution touching Oaths in Spiritual Causes in Ecclesiastical Courts till that time not known nor used in England as appears by the words of the Constitution Jusjurandum Calumniae in causis Ecclesiasticis quibuslibet de veritate dicenda in spiritualibus quoque ut Veritas aperiatur facilius causae celerius terminentur statuimus de caetero Praestari in Regno Angliae secundum canonicas Legitimas sanctiones Obtentâ in contrarium Consuetudine Non obstante vid. Matth. Paris 454. A clear resolution that till that time the custom of England and the Law of the Land was to the contrary and that they could not enforce any Man to his Oath in such cases After which Grosthead Bishop of Lincoln Anno 1246. Vpon the suggestion of the Fryers Predicant and Minorites raged more than was meet or Expedient they are the words of Matthew Paris against those of his Diocess making strict inquisition in his Bishoprick by his Arch-deacons and Deans concerning the Chastity and manners as well of noble as ignoble upon Oath to the enormous hurt and scandal of the reputations of many Quod nunquam antea fieri consueverat The King hearing the Grievous Complaints of his people Consilio Curiae suae scripsit Vicecomiti Hertfordiae in haec verba Henricus Dei Gratia Rex Angliae c. Praecipimus tibi quod sicut teipsum omnia tua diligis non permittas quod aliqui laici de Ballivâ tuâ ad voluntatem Episcopi Lincolniensis Achidiaconorum vel Officialium seu Decanorum Ruralium in aliquo loco Conveniant de caetero ad cognitiones per sacramentum eorum vel attestationes aliquas faciendas nisi in causis matrimonialibus Testamentariis Matth. Par. p. 716. And the very next year following in pursuance hereof the King by Parliament Enacted and Commanded That if any Lay-man were convented before any Ecclesiastical Judge for breach of Faith and Perjury that they should be prohibited by the King and that the Ecclesiastical Judge should be prohibited to hold plea for all Causes against Lay-men unless they were of Matrimony and Testament All which Matth. Paris precisely relates pag. 727. Which Prohibition and Statute nullified the Constitution of Otho and put a stop to this his innovation But yet about nine years after Boniface Arch-bishop of Canterbury published this peremptory Constitution in affront to them both Statuimus quod laici ubi de subditorum peccatis excessibus corrigendis per Praelatos Ecclesiasticos judices inquiritur ad praestandum de Veritate dicendâ juramentum per Excommunicationis sententias si opus fuerit Compellantur Impedientes vero ne hujusmodi juramenta praestentur for the Judges with many others then generally oppugned and hindred the ushering in of this Innovation per interdicti excommunicationis sententiam arceantur To evacuate which illegal Constitution trenching both upon the people's Liberties and the Courts of Justice too the Judges frequently Granted out sundry General Prohibitions to all or most of the Sheriffs of England as is evident by the Register of Writs Pars 2. fol. 36.43.50 Fitzherbert's Nat. Brev. fol. 41. A. Auxy home poit suer prohibition direct al Viscount que le Viscount ne permit ne suffer les lay subjects del Roy de vener a ascun lieu al citation del Evesque ad faciend aliquas recognitiones vel sacrament prestand nisi in causis matrimonialibus Testamentariis Rastal's Abridment of the statutes Title Prohibit nu 5. Vpon which Prohibitions this Attachment followed The King to the Sherifs Greeting Cause such a Bishop to put in sureties to appear before our Justices c. to shew cause why he made certain Lay persons to be summoned and distrained by Ecclesiastial censures to appear before him at his pleasure to take an Oath against their Wills In Grave Praejudicium Coronae Dignitatis nostrae Regiae necnon contra consuetudinem Regni nostri By all which and by the Petition of Right it self it appears evidently that this Juramentune Calumniae or Oath ex officio was utterly against Law. For one of the Grievances complain'd of in that Petition was that the King's Subjects had had an Oath administred to
them not warrantable by the Laws and Statutes of the Realm Now what use the Doctor can make of this Particular viz. of the King 's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law I cannot discover Sir Roger's eighteenth and last particular is an observation in Matth. Paris where the Ecclesiasticks having enumerated several cases in which they held themselves hardly dealt with add That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition he was attached and appearing before the Justices constrained to produce his proceedings that they might determine to which Court the Cause belonged By which says he it is manifest how the King's Courts had the superintendency over the Ecclesiastick This makes nothing for any Extrajudicial Personal Arbitrary power in the King in the Ecclesiastical matters and is so far from impugning that it corroborates my hypothesis That the Temporal and Ecclesiastical Courts often quarrel'd about their Jurisdiction and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm thereby endeavouring to usurp and encroach upon many matters which apparently belonged to the Common Laws as the tryal of Limits and Bounds of Parishes the Right of Patronage the tryal of right of Tythes by Indicavit Writs to the Bishop upon a recovery in a Quare impedit the tryal of Titles to Church-Lands concerning Distresses and Attachments within their own Fees and many other things which belonged to the King 's Temporal Courts That the Temporal Courts granted Prohibitions in these and other like cases that the Clergy hereupon complain'd not to the King but to the Parliament Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes 599 600 601 c. So that the King determined to which Court Causes belonged either in his Courts of Ordinary Justice or if the Clergy remain'd unsatisfied with the Opinions of the Judges in his High Court of Parliament and no otherwise But we need not wonder that such a Prelate as Arch bishop Bancroft whose Divinity had taught him that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself and that such Authority belonged to Kings by the Word of God in the Scripture we need not wonder I say to find him in King James the First 's time Exhibiting Articles of Abuses in granting Prohibitions against the Judges to the Lords of the Privy Council As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst 601 602 c. 12 Co. p. 63 64 65. By what has been said I hope it appears sufficiently that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction and no other than they had in Temporal matters viz. in their Great Councels and in their Ordinary Courts of Justice And that not only our Mercenary Doctor but more learned and wiser men than he have unwarily confounded that Jurisdiction with a Fiction of their own brains by which they have ascribed to the King a Personal Supremacy without any warrant from Antiquity Law or History Witness these loose Expressions in Sir Roger Twiden's Historical Vindication c. It cannot be denyed but the necessity of being in union with the true Pope at least in time of schism did wholly depend on the King pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals that is quae sui sunt ordinis without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione in other things as points of Government the Ordering that of Right and Custom ever to have belonged to the King assisted with his Councel of Bishops and others of the Clergy who was therefore called Vicarius Christi c. pag. 21. The King and the Arch bishop or rather the Arch-bishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy as the Erection of Bishopricks disposing and translating of Bishops c. p. 24. and innumerable others But to go on with Dr. Johnston and draw to a conclusion he acknowledges pag. 157 that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time And if no such thing can be found then what authority can our Kings now have to exercise such a Jurisdiction unless by vertue of some Act of Parliament made in or since his time But says he we have sufficient grounds to judge that whatever was done was by the King's Power and Authority which is a wild extravagant ignorant expression and hardly common sense And therefore says he Sir Edward Coke in Cawdrie's case Lays it down for a Rule That as in Temporal Causes the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proed approved and allowed here by and with general consent are aptly and rightly called the King's Ecclesiastical Laws and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects c. pag. 157. which that he has he proves by the Preamble of stat 24 Hen. 8. cap. 12. And what then May the King therefore erect New Courts directly contrary to positive Laws Command things arbitrarily upon pain of suspension deprivation c. and Command things contrary to Law by vertue of his Ecclesiastical Laws The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy which now stands Repealed And with 1 Eliz. by which he says all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governour But the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to shew hereafter that the Doctor understands the Act of 1 Eliz. as little as any thing else that he pretends to write upon FINIS